Official Opinion 95-10

Official Opinion 95-10

When a public agency is assembling more than one parcel of real property for a public project, records relative to that "transaction" and "property" as a whole are exempt from public inspection under O.C.G.A. § 50-18-72(a)(6) until all the property to be acquired is acquired or is abandoned or terminated from the project.

In preparing your responses to an open records request for virtually all records pertaining to the ongoing acquisition of a park site, consisting of many parcels, you have asked for general guidance and specifically an answer to whether you must disclose appraisals of acquired parcels.

In that regard you have advised that the appraisal on each parcel in this project is derived from, and reports within its body, comprehensive data covering the project site generally. To this point, you have not disclosed any appraisal on property within the project site to any seller or other outside party. You fear that release of the information in the appraisal will compromise the appraisals on parcels not yet acquired. Having the appraisal, with its valuation and data, would reveal information contained in the appraisals of other parcels which are not yet acquired, some of which are in negotiation and some of which are proceeding to condemnation. Moreover, release of appraisal valuations on acquired parcels, when compared with the actual purchase prices, might disclose negotiation and acquisition strategy for the project. This, in turn, might

Official Code of Georgia Annotated § 50-18-72(a)(6) provides the following exemption:

(a) Public disclosure shall not be required for records that are: . . . (6) Real estate appraisals, engineering or feasibility estimates, or other records made for or by the state or a local agency relative to the acquisition of real property until such time as the property has been acquired or the proposed transaction has been terminated or abandoned; . . . .

(Emphasis added); see also O.C.G.A. § 50-14-3(4) (similar exemption for minutes of meetings closed to discuss acquisition of real estate).

This language may be interpreted in at least three ways when an agency is assembling a project site from more than one owner over a period of time.

First, one might focus upon individual parcels and conclude literally that when each parcel is "acquired" or when the "transaction" for that parcel is abandoned, the exemption ends. See Black v. Department of Transp., 262 Ga. 342, 343 (1992) (Dissent, focusing on plain meaning of "acquired"). The merit in this approach is simplicity and openness.

Second, however, one might recognize that complex situations accompany the assemblage of real estate. Qualifying the first construction, one might treat as exempt any record which is "relative to the acquisition" of more than one parcel until all parcels are acquired or their transactions abandoned. Since the Code provision does not expressly say which status controls when a record fits both exempt and non-exempt criteria, this interpretation relies on the policy behind the exemption, to prevent unfair advantage. See Black v. Department of Transp., supra.

Third, one might recognize the project site as itself constituting "the property" being acquired. Under this approach, any record relative to the acquisition of the "project" would remain exempt until the project site is assembled and the transaction as to any unacquired portion is abandoned. The merit in this approach is that it provides a bright line, as the Code apparently intends: On its face, Code paragraph 50-18-72(a)(6) exempts any record relative to acquisition until the matter is over, without express regard to whether releasing the record would or would not compromise negotiations and condemnation strategy.

The third interpretation yields this bright line result consistently for both single parcel and multiple parcel acquisitions. In contrast, both the first and second interpretations would change the rule for multi-parcel projects and require greater disclosure in the more complex situation, where the risk of unfair advantage is even greater. I do not think the General Assembly should be read to intend the anomalous result if the plain language may be read otherwise.

The language in question contains the clause, "until such time as the property has been acquired or the proposed transaction has been terminated." O.C.G.A. § 50-18-72(a)(6) (emphasis added). At first blush, the phrase "the proposed transaction" seems to refer to the process of acquiring an individual parcel, and taken in context, the phrases "the property" and "the proposed transaction" would appear to require similar meanings. However, the appellate cases recognize that "transaction" is a word used imprecisely, with broad meanings. Generally, in legal parlance it refers to a group of facts so related as to require "a single legal name." Black's Law Dictionary 1669 (4th ed. 1968). It is "broader" than "contract," United States Hoffman Mach. Corp. v. Ebenstein, 96 P.2d 661, 663 (Kan. 1939), and is "applicable generally to business affairs and to doings, proceedings, and negotiations affecting property rights, contracts . . . ." Tanner v. State, 161 Ga. 193, 198 (1925). It may mean a "piece of business" or the act of doing business. The American Heritage Dictionary 1286 (2d College Ed. 1982). Thus, it is consistent with plain meaning to interpret "transaction" in O.C.G.A. § 50-18-72(a)(6) as referring to the process of putting together a project site from many parcels, when many parcels constitute the "property" being acquired.

The third interpretation is also consistent with public policy as expressed in the Code and Constitution. In administering our form of government, it is accepted that there are costs, in open records and otherwise, which private businesses do not have to bear. See Hardaway Co. v. Rives, 262 Ga. 631, 635-37 (1992); Cox Enterprises, Inc. v. Carroll City/County Hosp, Auth., 247 Ga. 39, 46 (1981). The open records law requires its exemptions to be interpreted narrowly. O.C.G.A. § 50-18-72(g). On the other hand, as explained above, in enacting this exemption for real property acquisitions, the General Assembly has qualified the policy of openness for the purpose of preventing unfair advantage and has done so with apparent intent to draw a bright line. This, too, is consistent with the public trust imposed upon public officers, Ga. Const. 1983, Art. I, Sec. II, Para. I, in that one of the more sacred trusts is the fiduciary duty to husband the public dollar. See Malcom v. Webb, 211 Ga. 449, 456 (1955); 1976 Op. Att'y Gen. p. 353, 361 "Position Paper on Conflicts of Interest."

It is well known that I favor open government. In the spirit of these competing public policies, both anchored to the rule that we all serve as trustees, I advise you to release all those records which will not compromise your acquisitions for the public project. This is consistent with the statutory mandate to construe all exemptions narrowly and to withhold only the portion of a public record to which an exclusion is directly applicable. O.C.G.A. § 50-18-72(g).

Nevertheless, for the reasons given above, it is my official opinion that when a public agency is assembling more than one parcel of real property for a public project, records relative to that "transaction" and "property" as a whole are exempt from disclosure under O.C.G.A. § 50-18-72(a)(6) until all the property to be acquired is acquired or is abandoned or terminated from the project.